9

Required Reading <PN>Part I</PN>

<PT>Moral Foundations</PT>

<CN>1</CN>

<CT>Moral Norms</CT>

In the last third of the twentieth century, major developments in the biological

and health sciences and in biomedical technology strikingly challenged

traditional professional ethics in much of clinical medicine, nursing, and

biomedical and behavioral research.1 Despite a remarkable continuity in

medical ethics across millennia, the widely-revered Hippocratic tradition could

not adequately address many modern concerns such as informed consent,

privacy, access to health care, communal and public health responsibilities, and

research involving human subjects. Professional ethics was also ill equipped to

provide an adequate framework for public policy in a pluralistic society.

In this book we acknowledge and draw from the great traditions of

medical ethics,2 but we also draw from philosophical reflections on morality.

This approach helps us to examine and, where appropriate, challenge common

assumptions in the biomedical sciences, health care, and public health.

10

<1>NORMATIVE AND NONNORMATIVE ETHICS</1>

The term ethics needs attention before we turn to the meanings of morality and

professional ethics. Ethics is a generic term covering several different ways of

examining and interpreting the moral life. Some approaches to ethics are

normative, others nonnormative.

<2>Normative Ethics</2>

General normative ethics addresses the question, “Which general moral norms

should we use to guide and evaluate conduct, and why?” Ethical theories seek

to identify and justify these norms, which are often referred to as principles,

rules, rights, or virtues. In Chapter 9 we examine several types of general

normative ethical theory and offer criteria for assessing them.

Many practical questions would remain unanswered even if a fully

satisfactory general ethical theory were available. The term practical ethics, as

used here, is synonymous with applied ethics and stands in contrast to

theoretical ethics.3 It refers to the use of moral concepts and norms when

deliberating about moral problems, practices, and policies in professions,

institutions, and public policy. Often no direct movement from general norms,

11

precedents, or theories to particular judgments is possible. General norms are

usually only starting points for the development of more specific norms of

conduct suitable for contexts such as clinical medicine and biomedical research.

Throughout this book we address how to move from general norms to specific

norms and particular judgments and from theory to practice.

<2>Nonnormative Ethics</2>

Two types of nonnormative ethics are distinguishable. The first is descriptive

ethics, which is the factual investigation of moral beliefs and conduct. It often

uses scientific techniques to study how people reason and act. For example,

anthropologists, sociologists, psychologists, and historians determine which

moral norms are expressed in professional practice, in professional codes, in

institutional mission statements and rules, and in public policies. They study

phenomena such as surrogate decision making, treatment of the dying, the use

of vulnerable populations in research, how consents are obtained from patients,

and refusal of treatment by patients.

The second type of nonnormative ethics is metaethics, which involves

analysis of the language, concepts, and methods of reasoning in normative

ethics.4 For example, metaethics addresses the meanings of terms such as right,

12

obligation, virtue, justification, morality, and responsibility. It is also concerned

with moral epistemology (the theory of moral knowledge), the logic and

patterns of moral reasoning and justification, and the nature and possibility of

moral truth. Whether morality is objective or subjective, relative or nonrelative,

and rational or nonrational are prominent questions in metaethics.

Descriptive ethics and metaethics are nonnormative because their

objective is to establish what factually or conceptually is the case, not what

ethically ought to be the case or what is ethically valuable. For example, in this

book we often rely on reports in descriptive ethics when investigating the nature

of professional conduct and codes of ethics, current forms of access to health

care, and physician attitudes toward hastening the deaths of patients who have

requested aid in dying. In these investigations we are interested in how such

descriptive information assists in determining which practices are morally

justifiable as well as in resolving other normative issues.

<1>THE COMMON MORALITY AS UNIVERSAL MORALITY</1>

In its most familiar sense, the word morality (a broader term than common

morality, which is discussed immediately below in the section on “The Nature

of the Common Morality,” and in more detail in Chapter 10, pp. •••–•••) refers

13

to norms about right and wrong human conduct that are widely shared and form

a stable societal compact. As a social institution, morality encompasses many

standards of conduct, including moral principles, rules, ideals, rights, and

virtues. We learn about morality as we grow up, and we learn to distinguish

between the part of morality that holds for everyone and moral norms that bind

only members of specific communities or special groups such as physicians,

nurses, or public health officials.

<2>The Nature of the Common Morality</2>

Some core tenets found in every acceptable particular morality are not relative

to cultures, groups, or individuals. All persons living a moral life know and

accept rules such as not to lie, not to steal others’ property, not to punish

innocent persons, not to kill or cause harm to others, to keep promises, and to

respect the rights of others. All persons committed to morality do not doubt the

relevance and importance of these universally valid rules. Violation of these

norms is unethical and will generate feelings of remorse. The literature of

biomedical ethics virtually never debates the merit or acceptability of these

central moral norms. Debates do occur, however, about their precise meaning,

scope, weight, and strength, often in regard to hard moral cases or current

14

practices that merit careful scrutiny—such as when, if ever, physicians may

justifiably withhold some aspects of a diagnostic finding from their patients.

We call the set of universal norms shared by all persons committed to

morality the common morality. This morality is not merely a morality, in

contrast to other moralities.5 It is applicable to all persons in all places, and we

appropriately judge all human conduct by its standards. The following norms

are examples (far from a complete list) of generally binding standards of action

(that is, rules of obligation) found in the common morality: (1) Do not kill, (2)

Do not cause pain or suffering to others, (3) Prevent evil or harm from

occurring, (4) Rescue persons in danger, (5) Tell the truth, (6) Nurture the

young and dependent, (7) Keep your promises, (8) Do not steal, (9) Do not

punish the innocent, and (10) Obey just laws.

The common morality also contains standards other than obligatory rules

of conduct. Here are ten examples of moral character traits, or virtues,

recognized in the common morality (again, not a complete list): (1)

nonmalevolence (not harboring ill will toward others), (2) honesty, (3) integrity,

(4) conscientiousness, (5) trustworthiness, (6) fidelity, (7) gratitude, (8)

truthfulness, (9) lovingness, and (10) kindness. These virtues are universally

admired traits of character.6 A person is deficient in moral character if he or she

15

lacks such traits. Negative traits that are the opposite of these virtues are vices

(for example, malevolence, dishonesty, lack of integrity, cruelty, etc.). They are

universally recognized as substantial moral defects. In this chapter we will say

nothing further about moral character and the virtues and vices, because they

are investigated in both Chapter 2 and a major section of Chapter 9 (pp. •••–

•••,•••–•••).

In addition to the obligations and virtues just mentioned, the common

morality supports human rights and endorses moral ideals such as charity and

generosity. Philosophers debate whether one of these regions of the moral

life—obligations, rights, or virtues—is more basic or more valuable than

another, but in the common morality there is no reason to give primacy to any

one area or type of norm. For example, human rights are not more basic than

moral virtues in universal morality, and moral ideals should not be downgraded

morally merely because people are not obligated to conform to them. An undue

emphasis on any one of these areas or types of norms disregards the full scope

of morality.7

Our account of universal morality in this chapter and Chapter 10 does not

conceive of the common morality as ahistorical or a priori.8 This problem in

moral theory cannot be adequately engaged until our discussions in Chapter 10,

16

and we offer now only three clarifications of our position: First, the common

morality is a product of human experience and history and is a universally

shared product. The origin of the norms of the common morality is no different

in principle from the origin of the norms of a particular morality for a medical

or other profession. Both are learned and transmitted in communities. The

primary difference is that the common morality has authority in all

communities, whereas particular moralities are authoritative only for specific

groups. Second, we accept moral pluralism in particular moralities, as

discussed later in this chapter (pp. •••–•••), but we reject moral pluralism,

understood as relativism, in the common morality. (See the section in Chapter

10 on “Moral Change” for further clarification.) No particular moral way of

life qualifies as morally acceptable unless it conforms to the standards in the

common morality. Third, the common morality comprises moral beliefs (what

all morally committed persons believe), not timeless, detached standards that

exist independently of moral beliefs. Every theory of the common morality

likewise has a history of development by the author(s) of the theory.

<2>Ways to Examine the Common Morality</2>

Various statements about or references to the common morality might be

17

understood as normative, nonnormative, or possibly both. If the appeals are

normative, the claim is that the common morality has normative force: It

establishes moral standards for everyone, and violating these standards is

unethical. If the references are nonnormative, the claim is that we can

empirically study whether the common morality is present in all cultures. We

accept both the normative force of the common morality and the objective of

studying it empirically.

Some critics of our theory of the common morality (see Chapter 10) have

asserted that scant anthropological or historical evidence supports the empirical

hypothesis that a universal common morality exists.9 Accordingly, they think

we need to consider how good the evidence is both for and against the existence

of a universal common morality. This problem is multifaceted and difficult to

address, but in principle, scientific research could either confirm or falsify the

hypothesis of a universal morality. It would be absurd to assert that all persons

do in fact accept the norms of the common morality, because many amoral,

immoral, or selectively moral persons do not care about or identify with its

moral demands. Our hypothesis is that all persons committed to morality accept

the standards in the common morality.

We explore this hypothesis about the empirical study of the common

18

morality in Chapter 10 (pp. •••–•••). Here we note only that when we claim that

the normative judgments found in many parts of this book are derived from the

common morality, we are not asserting that our theory of the common morality

gets the common morality perfectly right or that it interprets or extends the

common morality in just the right ways. No doubt, there are dimensions of the

common morality that we do not correctly capture or depict; and there are many

parts of the common morality that we do not even address.10 When we attempt

to build on the common morality in this book by using it as a basis for critically

examining problems of biomedical ethics, we do not mean to imply that our

extensions can validly claim the authority of the common morality at every

level of our interpretation of this morality.

<1>PARTICULAR MORALITIES AS NONUNIVERSAL</1>

We shift now from universal morality (the common morality) to particular

moralities, which contain moral norms that are not shared by all cultures,

groups, and individuals who are committed to morality.

<2>The Nature of Particular Moralities</2>

Whereas the common morality contains moral norms that are abstract,

19

universal, and content-thin (such as “Tell the truth”), particular moralities

present concrete, nonuniversal, and content-rich norms (such as “Make

conscientious oral disclosures to, and obtain a written informed consent from,

all human research subjects”). Particular moralities are distinguished by the

specificity of their norms, but these norms are not morally justified if they

violate norms in the common morality. Specific moralities include the many

responsibilities, aspirations, ideals, sentiments, attitudes, and sensitivities found

in diverse cultural traditions, religious traditions, professional practice, and

institutional guides. Explication of the values in these moralities sometimes

requires a special knowledge and may involve refinement by experts or scholars

over centuries—as, for example, in the body of Jewish religious, legal, and

moral norms in the Talmudic tradition; well-structured moral systems to

provide methods for judgments and to adjudicate conflicts in Roman Catholic

casuistry; and Islamic reliance on Shari’ah-based principles. Each tradition

continues today to elaborate its commitments through the development of

detailed, and hopefully coherent systems of medical ethics. These elaborations

are often derived from the common morality, not merely from the scriptures of

a particular religious tradition.

Professional moralities, which include moral codes and standards of

20

practice, are also particular moralities. They may legitimately vary from other

moralities in the ways they handle certain conflicts of interest, research protocol

reviews, advance directives, and similar matters. (See the next section below on

“Professional and Public Moralities.”) Moral ideals such as charitable goals and

aspirations to rescue suffering persons in dangerous situations provide another

instructive example of facets of particular moralities. By definition, moral

ideals such as charitable beneficence are not morally required of all persons;

indeed, they are not required of any person.11 Persons who fail to fulfill even

their own personal ideals cannot be blamed or criticized by others. These ideals

may nonetheless be critically important features of personal or communal

moralities. Examples are found in physicians’ individual commitments or

physician codes that call for assumption of a significant level of risk in

circumstances of communicable disease. It is reasonable to presume that all

morally committed persons share an admiration of and endorsement of moral

ideals of generosity and service, and in this respect these ideals are part of

shared moral beliefs in the common morality; they are universally praiseworthy

even though not universally required or universally practiced. When such

ideals are regarded by those who embrace them as obligations (as they are, for

example, in some monastic traditions), the obligations are still parts of a

21

particular morality, not of universal morality.

Persons who accept a particular morality sometimes presume that they

can use this morality to speak with an authoritative moral voice for all persons.

They operate under the false belief that their particular convictions have the

authority of the common morality. These persons may have morally acceptable

and even praiseworthy beliefs, but their particular beliefs do not bind other

persons or communities. For example, persons who believe that scarce medical

resources, such as transplantable organs, should be distributed by lottery rather

than by medical need may have good moral reasons for their views, but they

cannot claim that their views are supported by the common morality.

<2>Professional and Public Moralities</2>

Just as the common morality is accepted by all morally committed persons,

most professions have, at least implicitly, a professional morality with standards

of conduct that are generally acknowledged and encouraged by those in the

profession who are serious about their moral responsibilities. In medicine,

professional morality specifies general moral norms for the institutions and

practices of medicine. Special roles and relationships in medicine derive from

rules or traditions that other professions will likely not need or accept. As we

22

argue in Chapters 4 and 8, rules of informed consent and medical

confidentiality may not be serviceable or appropriate outside of medicine,

nursing, biomedical research, and public health, but these rules are justified by

general moral requirements of respecting the autonomy of persons and

protecting them from harm.

Members of professions often adhere to moral guidelines such as rules

prohibiting discrimination against colleagues on the basis of gender, race,

religion, or national origin (some of these guidelines now have legal backing).

In recent years formal codifications of and instruction in professional morality

have increased through codes of medical and nursing ethics, codes of research

ethics, corporate policies of bioethics, institutional guidelines governing

conflict of interest, and the reports and recommendations of public

commissions. Before we assess these guidelines, the nature of professions in

general needs brief discussion.

In a classic work on the subject, Talcott Parsons defines a profession as

“a cluster of occupational roles, that is, roles in which the incumbents perform

certain functions valued in the society in general, and, by these activities,

typically earn a living at a full-time job.”12 Under this definition, circus

performers, exterminators, and garbage collectors are professionals. It is not

23

surprising to find all such activities characterized as professions, inasmuch as

the word profession has come, in common use, to mean almost any occupation

by which a person earns a living. The once honorific sense of profession is now

better reflected in the term learned profession, which assumes an extensive

education in the arts, humanities, law, sciences, or technologies.

Professionals are usually distinguished by their specialized knowledge

and training as well as by their commitment to provide important services or

information to patients, clients, students, or consumers. Professions maintain

self-regulating organizations that control entry into occupational roles by

formally certifying that candidates have acquired the necessary knowledge and

skills. In learned professions such as medicine, nursing, and public health, a

professional’s background knowledge is partly acquired through closely

supervised training, and the professional is committed to providing a service to

others.

Health care professions specify and enforce obligations for their

members, thereby seeking to ensure that persons who enter into relationships

with these professionals will find them competent and trustworthy.13 The

obligations that professions attempt to enforce are determined by an accepted

role. These obligations comprise the “ethics” of the profession, although there

24

may also be role-specific customs such as self-effacement that are not

obligatory. Problems of professional ethics commonly arise either from

conflicts over appropriate professional standards or conflicts between

professional commitments and the commitments professionals have outside the

profession.

Because traditional standards of professional morality are often vague,

some professions codify their standards in detailed statements aimed at

reducing vagueness and improving adherence. Their codes sometimes specify

rules of etiquette in addition to rules of ethics. For example, a historically

significant version of the code of the American Medical Association (AMA)

dating from 1847 instructed physicians not to criticize fellow physicians who

had previously been in charge of a case.14 Such professional codes tend to foster

and reinforce member identification with the prevailing values of the

profession. These codes are beneficial when they effectively incorporate

defensible moral norms, but some codes oversimplify moral requirements,

make them indefensibly rigid, or make excessive and unwarranted claims about

their completeness and authoritativeness. As a consequence, professionals may

mistakenly suppose that they are satisfying all relevant moral requirements by

scrupulously following the rules of the code, just as some people believe that

25

they fully discharge their moral obligations when they meet all relevant legal

requirements.

We can and should ask whether the codes specific to areas of science,

medicine, nursing, health care, and public health are coherent, defensible, and

comprehensive within their domain. Historically, few codes had much to say

about the implications of several pivotal moral principles and rules such as

veracity, respect for autonomy, and social justice that have been the subjects of

intense discussion in recent biomedical ethics. From ancient medicine to the

present, physicians have generated codes without determining their

acceptability to patients and the public. These codes have rarely appealed to

general ethical standards or to a source of moral authority beyond the traditions

and judgments of physicians themselves.15 The articulation of such professional

norms has often served more to protect the profession’s interests than to offer a

broad and impartial moral viewpoint or to address issues of importance to

patients and society.16

Psychiatrist Jay Katz poignantly expressed reservations about traditional

principles and codes of medical ethics. Initially inspired by his outrage over the

fate of Holocaust victims at the hands of German physicians, Katz became

convinced that a professional ethics that reaches beyond traditional codes is

26

indispensable:

<EXT>As I became increasingly involved in the world of law, I

learned much that was new to me from my colleagues and students about

such complex issues as the right to self-determination and privacy and

the extent of the authority of governmental, professional, and other

institutions to intrude into private life. . . . These issues . . . had rarely

been discussed in my medical education. Instead it had been all too

uncritically assumed that they could be resolved by fidelity to such

undefined principles as primum non nocere [“First, do no harm”] or to

visionary codes of ethics.17</EXT>

<2>The Regulation and Oversight of Professional Conduct</2>

Additional moral direction for health professionals and scientists comes through

the public policy process, which includes regulations and guidelines

promulgated by governmental bodies. The term public policy refers to a set of

normative, enforceable guidelines adopted by an official public body, such as

an agency of government or a legislature, to govern a particular area of conduct.

The policies of corporations, hospitals, trade groups, and professional societies

are private, not public, even if these bodies are regulated to some degree by

27

public policies and sometimes have an impact on public policy.

A close connection exists between law and public policy: All laws

constitute public policies, but not all public policies are, in the conventional

sense, laws. In contrast to laws, public policies need not be explicitly

formulated or codified. For example, an official who decides not to fund a

newly recommended government program with no prior history of funding is

formulating a public policy. Decisions not to act, as well as decisions to act, can

constitute policies.

Policies such as those that fund health care for the indigent or that protect

subjects of biomedical research regularly incorporate moral considerations.

Moral analysis is part of good policy formation, not merely a method for

evaluating existing policy. Efforts to protect the rights of patients and research

subjects are instructive examples. Over the past few decades many governments

have created national commissions, national review committees, advisory

committees, and councils to formulate guidelines for research involving human

subjects, for the distribution of health care, and for addressing moral mistakes

made in the health professions. Morally informed policies have guided decision

making about other areas of practice as well. The relevance of bioethics to

public policy is now recognized in most countries, some of which have

28

influential standing bioethics committees.18

Many courts have developed case law that sets standards for science,

medicine, and health care. Legal decisions often express communal moral

norms and stimulate ethical reflection that over time alters those norms. For

example, the lines of court decisions in many countries about how dying

patients may be or must be treated have constituted nascent traditions of moral

reflection that have been influenced by, and in turn have influenced, literature

in biomedical ethics on topics such as when artificial devices that sustain life

may be withdrawn, whether medically administered nutrition and hydration is a

medical treatment that may be discontinued, and whether physicians may be

actively involved in hastening a patient’s death at the patient’s request.

Policy formation and criticism generally involve more specific moral

judgments than the judgments found in general ethical theories, principles, and

rules.19 Public policy is often formulated in contexts that are marked by

profound social disagreements, uncertainties, and differing interpretations of

history. No body of abstract moral principles and rules can fix policy in such

circumstances, because abstract norms do not contain enough specific

information to provide direct and discerning guidance. The implementation of

moral principles and rules, through specification and balancing, must take into

29

account factors such as feasibility, efficiency, cultural pluralism, political

procedures, pertinent legal requirements, uncertainty about risk, and

noncompliance by patients. Moral principles and rules provide a normative

structure for policy formation and evaluation, but policies are also shaped by

empirical data and information generated in fields such as medicine, nursing,

public health, veterinary science, economics, law, biotechnology, and

psychology.

When using moral norms to formulate or criticize public policies, one

cannot move with assurance from a judgment that an act is morally right (or

wrong) to a judgment that a corresponding law or policy is morally right (or

wrong). Considerations such as the symbolic value of law and the costs of a

publicly funded program and its enforcement often may have substantial

importance for law and policy. The judgment that an act is morally wrong does

not entail the judgment that the government should prohibit it or refuse to

allocate funds to support it. For example, one can argue without any

inconsistency that sterilization and abortion are morally wrong but that the law

should not prohibit them, because they are fundamentally matters of personal

choice beyond the legitimate reach of government (or, alternatively, because

many persons would seek dangerous and unsanitary procedures from unlicensed

30

practitioners). Similarly, the judgment that an act is morally acceptable does not

imply that the law should permit it. For example, the belief that euthanasia is

morally justified for some terminally ill infants who face uncontrollable pain

and suffering is consistent with the belief that the government should legally

prohibit such euthanasia on grounds that it would not be possible to control

abuses if it were legalized.

We are not defending any of these moral judgments. We are maintaining

only that the connections between moral norms and judgments about policy or

law are complicated and that a judgment about the morality of particular actions

does not entail a comparable judgment about law or policy.

<1>MORAL DILEMMAS</1>

Common to all forms of practical ethics is reasoning through difficult cases,

some of which constitute dilemmas. This is a familiar feature of decision

making in morality, law, and public policy. Consider a classic case20 in which

judges on the California Supreme Court had to reach a decision about the legal

force and limits of medical confidentiality. A man had killed a woman after

confiding to a therapist his intention to do so. The therapist had attempted

unsuccessfully to have the man committed but, in accordance with his duty of

31

medical confidentiality to the patient, did not communicate the threat to the

woman when the commitment attempt failed.

The majority opinion of the Court held that “When a therapist

determines, or pursuant to the standards of his profession should determine, that

his patient presents a serious danger of violence to another, he incurs an

obligation to use reasonable care to protect the intended victim against such

danger.” This obligation extends to notifying the police and also to warning the

intended victim. The justices in the majority opinion argued that therapists

generally ought to observe the rule of medical confidentiality, but that the rule

must yield in this case to the “public interest in safety from violent assault.”

These justices recognized that rules of professional ethics have substantial

public value, but they held that matters of greater importance, such as

protecting persons against violent assault, can override these rules.

In a minority opinion, a judge disagreed and argued that doctors violate

patients’ rights if they fail to observe standard rules of confidentiality. If it were

to become common practice to break these rules, he reasoned, the fiduciary

nature of the relationship between physicians and patients would erode. Persons

who are mentally ill would refrain from seeking aid or divulging critical

information because of the loss of trust that is essential for effective treatment.

32

This case presents moral and legal dilemmas in which the judges cite

relevant reasons to support their conflicting judgments.21 Moral dilemmas are

circumstances in which moral obligations demand or appear to demand that a

person adopt each of two (or more) alternative but incompatible actions, such

that the person cannot perform all the required actions. These dilemmas occur

in at least two forms.22 (1) Some evidence or argument indicates that an act is

morally permissible and some evidence or argument indicates that it is morally

wrong, but the evidence or strength of argument on both sides is inconclusive.

Abortion, for example, may present a terrible dilemma for women who see the

evidence in this way. (2) An agent believes that, on moral grounds, he or she is

obligated to perform two or more mutually exclusive actions. In a moral

dilemma of this form, one or more moral norms obligate an agent to do x and

one or more moral norms obligate the agent to do y, but the agent cannot do

both in the circumstance. The reasons behind alternatives x and y are weighty

and neither set of reasons is overriding. If one acts on either set of reasons,

one’s actions will be morally acceptable in some respects and morally

unacceptable in others. The withdrawal of life-prolonging therapies from

patients suffering from a wakeful unconscious state (formerly called a

persistent, continuing, or continuous vegetative state) is sometimes regarded as

33

an instance of this second form of dilemma.

Popular literature, novels, and films often illustrate how conflicting moral

principles and rules create difficult dilemmas. For example, an impoverished

person who steals from a grocery store to save a family from starvation

confronts such a dilemma. The only way to comply with one obligation is to

contravene another obligation. Some obligation must be overridden or

compromised no matter which course is chosen. From the perspective we

defend, it is confusing to say that we are obligated to perform both actions in

these dilemmatic circumstances. Instead, we should discharge the obligation

that we judge to override what we would have been firmly obligated to perform

were it not for the conflict.

Conflicts between moral requirements and self-interest sometimes create

a practical dilemma, but not, strictly speaking, a moral dilemma. If moral

reasons compete with nonmoral reasons, such as self-interest, questions about

priority can still arise even though no moral dilemma is present. When a moral

reason conflicts with a personal reason, the moral reason is not always

overriding. If, for example, a physician must choose between saving his or her

own life or that of a patient, in a situation of extreme scarcity of available drugs,

the moral obligation to take care of the patient may not be overriding.

34

Some moral philosophers and theologians have argued that although

many practical dilemmas involving moral reasons exist, no irresolvable moral

dilemmas exist. They do not deny that agents experience moral perplexity or

conflict in difficult cases. However, they claim that the purpose of a moral

theory is to provide a principled procedure for resolving deep conflicts. Some

philosophers have defended this conclusion because they accept one supreme

moral value as overriding all other conflicting values (moral and nonmoral) and

because they regard it as incoherent to allow contradictory obligations in a

properly structured moral theory. The only ought, they maintain, is the one

generated by the supreme value.23 (We examine such theories, including both

utilitarian and Kantian theories, in Chapter 9.)

In contrast to the account of moral obligation offered by these theories,

we maintain throughout this book that various moral principles, rules, and rights

can and do conflict in the moral life. These conflicts sometimes produce

irresolvable moral dilemmas. When forced to a choice, we may “resolve” the

situation by choosing one option over another, but we also may believe that

neither option is morally preferable. A physician with a limited supply of

medicine may have to choose to save the life of one patient rather than another

and still find his or her moral dilemma irresolvable. Explicit acknowledgment

35

of such dilemmas helps deflate unwarranted expectations about what moral

principles and theories can do. Although we find ways of reasoning about what

we should do, we may not be able to reach a reasoned resolution in many

instances. In some cases the dilemma becomes more difficult and remains

unresolved even after the most careful reflection.

<1>A FRAMEWORK OF MORAL PRINCIPLES</1>

Moral norms central to biomedical ethics rely on the common morality, but they

do not exhaust the common morality. Some types of basic moral norms are

treated in this section, especially principles, rules, and rights. The virtues are the

subject of Chapter 2, and the principles of primary importance for biomedical

ethics are treated individually in Part II of this book. Most classical ethical

theories accept these norms in some form, and traditional medical codes

incorporate or presuppose at least some of them.

<2>Principles</2>

The set of pivotal moral principles defended in this book functions as an

analytical framework of general norms derived from the common morality that

form a suitable starting point for reflection on moral problems in biomedical

36

ethics.24 These principles are general guidelines for the formulation of more

specific rules. In Chapters 4 through 7 we defend four clusters of moral

principles: (1) respect for autonomy (a norm of respecting and supporting

autonomous decisions), (2) nonmaleficence (a norm of avoiding the causation

of harm), (3) beneficence (a group of norms pertaining to relieving, lessening,

or preventing harm and providing benefits and balancing benefits against risks

and costs), and (4) justice (a cluster of norms for fairly distributing benefits,

risks, and costs).

Nonmaleficence and beneficence have played central roles in the history

of medical ethics. By contrast, respect for autonomy and justice were neglected

in traditional medical ethics and have risen to prominence in this field only

recently. In 1803, British physician Thomas Percival published Medical Ethics,

the first comprehensive account of medical ethics in the long history of the

subject. This book served as the backbone of British medical ethics and as the

prototype for the American Medical Association’s first code of ethics in 1847.

Percival argued, using somewhat different language, that nonmaleficence and

beneficence fix the physician’s primary obligations and triumph over the

patient’s preferences and decision-making rights in circumstances of conflict.25

Percival understated the critically important place of principles of respect for

37

autonomy and distributive justice for physician conduct, but, in fairness to him,

these considerations are now prominent in discussions of ethics in medicine in a

way they were not when he wrote Medical Ethics.

That these four clusters of moral principles are central to biomedical

ethics is a conclusion the authors of this work have reached by examining

considered moral judgments and the coherence of moral beliefs, two notions

analyzed in Chapter 10. The selection of these four principles, rather than some

other clusters of principles, does not receive an argued defense in Chapters 1

through 3. However, in Chapters 4 through 7, we defend the vital role of each

principle in biomedical ethics.

<2>Rules</2>

The framework of moral norms in this book encompasses several types of

normative guidance, most notably principles, rules, rights, and virtues.

Principles are more comprehensive and less specific than rules, but we draw

only a loose distinction between them. Both are norms of obligation, but rules

are more specific in content and more restricted in scope. Principles do not

function as precise guides in each circumstance in the way that more detailed

rules and judgments do. Principles and rules of obligation have correlative

38

rights and often corresponding virtues. (See the discussion of rights in Chapter

9 and of virtues in Chapter 2.)

We defend several types of rules, the most important being substantive

rules, authority rules, and procedural rules.

<3>Substantive rules.</3> Rules of truth telling, confidentiality, privacy,

forgoing treatment, informed consent, and rationing health care provide more

specific guides to action than abstract principles provide. An example of a rule

that sharpens the requirements of the principle of respect for autonomy in

certain contexts is “Follow an incompetent patient’s advance directive

whenever it is clear and relevant.” To indicate how this rule specifies the

principle of respect for autonomy, it needs to be stated in full as “Respect the

autonomy of incompetent patients by following all clear and relevant

formulations in their advance directives.” This specification shows how the

initial norm of respect for autonomy endures even while becoming specified.

(See the subsection “Specifying Principles and Rules” in the next section of this

chapter.)

<3>Authority rules.</3> We also defend rules of decisional authority—

39

that is, rules regarding who may and should make decisions and perform

actions. For example, rules of surrogate authority determine who should serve

as surrogate agents when making decisions for incompetent persons; rules of

professional authority determine who in professional ranks should make

decisions to accept or to override a patient’s decisions; and rules of

distributional authority determine who should make decisions about allocating

scarce medical resources such as new and expensive medical technologies.

Authority rules do not delineate substantive standards or criteria for

making decisions. However, authority rules and substantive rules interact in

some situations. For instance, authority rules are justified, in part, by how well

particular authorities can be expected to respect and comply with substantive

rules and principles.

<3>Procedural rules.</3> We also defend rules that establish

procedures to be followed. Procedures for determining eligibility for organ

transplantation and procedures for reporting grievances to higher authorities are

typical examples. We often resort to procedural rules when we run out of

substantive rules and when authority rules are incomplete or inconclusive. For

example, if substantive or authority rules are inadequate to determine which

40

patients should receive scarce medical resources, a resort to procedural rules

such as queuing and lottery may be justifiable.26

<1>CONFLICTING MORAL NORMS</1>

<2>Prima Facie Obligations and Rights</2>

Principles, rules, obligations, and rights are not rigid or absolute standards that

allow no compromise. Although “a person of principle” is sometimes depicted

as strict and unyielding, principles must be balanced and specified so they can

function practically. It is no objection to moral norms that, in some

circumstances, they can be justifiably overridden by other norms with which

they conflict. All general moral norms are justifiably overridden in some

circumstances. For example, we might justifiably not tell the truth to prevent

someone from killing another person; and we might justifiably disclose

confidential information about a person to protect the rights of another person.

Actions that harm individuals, cause basic needs to go unmet, or limit

liberties are often said to be either wrong prima facie (i.e., wrongness is upheld

unless the act is justifiable because of norms that are more stringent in the

circumstances) or wrong pro tanto (i.e., wrong to a certain extent or wrong

41

unless there is a compelling justification)—which is to say that the action is

wrong in the absence of other moral considerations that supply a compelling

justification.27 Compelling justifications are sometimes available. For example,

in circumstances of a severe swine flu pandemic, the forced confinement of

persons through isolation and quarantine orders might be justified. Here a

justifiable infringement of liberty rights occurs.

W. D. Ross’s distinction between prima facie and actual obligations

clarifies this idea. A prima facie obligation must be fulfilled unless it conflicts

with an equal or stronger obligation. Likewise, a prima facie right (here we

extend Ross’s theory) must prevail unless it conflicts with an equal or stronger

right (or conflicts with some other morally compelling alternative). Obligations

and rights always constrain us unless a competing moral obligation or right can

be shown to be overriding in a particular circumstance. As Ross put it, agents

can determine their actual obligations in situations of conflict by examining the

respective weights of the competing prima facie obligations. What agents ought

to do is determined by what they ought to do all things considered.28

Imagine that a psychiatrist has confidential medical information about a

patient who also happens to be an employee in the hospital where the

psychiatrist practices. The employee seeks advancement in a stress-filled

42

position, but the psychiatrist has good reason to believe that this advancement

would be devastating for both the employee and the hospital. The psychiatrist

has several prima facie duties in these circumstances, including those of

confidentiality, nonmaleficence, beneficence, and respect for autonomy. Should

the psychiatrist break confidence in this circumstance to meet these other

duties? Could the psychiatrist make “confidential” disclosures to a hospital

administrator and not to the personnel office? Addressing such questions

through moral deliberation and justification is required to establish an agent’s

actual duty in the face of the conflicting prima facie duties.

These matters are more complicated than Ross suggests, particularly

when rights come into conflict. We may need to develop a structured moral

system or set of guidelines in which (1) some rights in a certain class of rights

(for example, rights of individuals while alive to decide whether to donate their

tissues and organs after death) have a fixed priority over others in another class

of rights (for example, rights of family members to make decisions about the

donation of their deceased relatives’ tissues and organs) and (2) morally

compelling social objectives such as gathering information in biomedical

research can almost always be overridden by basic human rights such as the

right to give an informed consent or refusal.

43

No moral theory or professional code of ethics has successfully presented

a system of moral rules free of conflicts and exceptions, but this observation

should not generate either skepticism or alarm about ethical reflection,

argument, and theory. The distinction between prima facie and actual

obligations conforms closely to our experience as moral agents and provides

indispensable categories for biomedical ethics. Almost daily we confront

situations that force us to choose among conflicting values in our personal lives.

For example, a person’s financial situation might require that he or she choose

between buying books for school and buying a train ticket to see friends. Not

having the books will be an inconvenience and a loss, whereas not visiting with

friends will disappoint the friends. Such choices do not come effortlessly, but

we are usually able to think through the alternatives, deliberate, and reach a

conclusion.

<2>Moral Regret and Residual Obligation</2>

An agent who determines that a particular act is the best one to perform in a

situation of conflicting obligations may still not be able to discharge all aspects

of moral obligation by performing that act. Even the morally best action in the

circumstances may still be regrettable and may leave a moral residue, also

44

called a moral trace.29 Regret and residue over what is not done can arise even if

the right action is clear and uncontested.

This point is about continuing obligation, not merely about feelings of

regret and residue. Moral residue results because a prima facie obligation does

not simply disappear when overridden. Often we have residual obligations

because the obligations we were unable to discharge create new obligations. We

may feel deep regret and a sting of conscience, but we also realize that we have

a duty to bring closure to the situation.30 We can sometimes make up for not

fulfilling an obligation in one or more of several ways. For example, we may be

able to notify persons in advance that we will not be able to keep a promise; we

may be able to apologize in a way that heals a relationship; we may be able to

change circumstances so that the conflict does not occur again; and we may be

able to provide adequate compensation.

<2>Specifying Principles and Rules</2>

The four clusters of principles we present in this book do not by themselves

constitute a general ethical theory. They provide only a framework of norms

with which to get started in biomedical ethics. These principles must be

specified in order to achieve more concrete guidance. Specification is a process

45

of reducing the indeterminacy of abstract norms and generating rules with

action-guiding content.31 For example, without further specification, “do no

harm” is too bare for thinking through problems such as whether it is

permissible to hasten the death of a terminally ill patient.

Specification is not a process of producing or defending general norms

such as those in the common morality; it assumes that the relevant general

norms are available. Specifying the norms with which one starts—whether

those in the common morality or norms previously specified—is accomplished

by narrowing the scope of the norms, not by explaining what the general norms

mean. We narrow the scope, as Henry Richardson puts it, by “spelling out

where, when, why, how, by what means, to whom, or by whom the action is to

be done or avoided.”32 For example, the norm that we are obligated to “respect

the autonomy of persons” cannot, unless specified, handle complicated

problems in clinical medicine and research involving human subjects. A

definition of “respect for autonomy” (e.g., as “allowing competent persons to

exercise their liberty rights”) clarifies one’s meaning in using the norm, but it

does not narrow the scope of the general norm or render it more specific in

guiding actions.

Specification adds content. For example, as noted previously, one

46

possible specification of “respect the autonomy of patients” is “respect the

autonomy of competent patients by following their advance directives when

they become incompetent.” This specification will work well in some medical

contexts, but it will confront limits in others, where additional specification will

be needed. Progressive specification can continue indefinitely, but to qualify all

along the way as a specification some transparent connection must be

maintained to the initial general norm that gives moral authority to the resulting

string of specifications. This process is a prime way in which general principles

become practical instruments for moral reasoning; and it also helps explain why

the four-principles approach is not merely an abstract theory limited to four

general principles.33

An example of specification arises when psychiatrists conduct forensic

evaluations of patients in a legal context. Psychiatrists cannot always obtain an

informed consent, but they then risk violating their obligations to respect

autonomy, a central imperative of medical ethics. A specification aimed at

handling this problem is “Respect the autonomy of persons who are the subjects

of forensic evaluations, where consent is not legally required, by disclosing to

the evaluee the nature and purpose of the evaluation.” We do not claim that this

formulation is the best specification, but it approximates the provision

47

recommended in the “Ethical Guidelines for the Practice of Forensic

Psychiatry” of the American Academy of Psychiatry and the Law.34 This

specification attempts to guide forensic psychiatrists in discharging their diverse

moral obligations.

Another example of specification derives from the oft-cited rule “Doctors

should put their patients’ interests first.” In some countries patients are able to

receive the best treatment available only if their physicians falsify information

on insurance forms. The rule of patient priority does not imply that a physician

should act illegally by lying or distorting the description of a patient’s problem

on an insurance form. Rules against deception, on the one hand, and for patient

priority, on the other, are not categorical imperatives. When they conflict, we

need some form of specification to know what we can and cannot do.

A survey of practicing physicians’ attitudes toward deception illustrates

how some physicians reconcile their dual commitment to patients and to

nondeception. Dennis H. Novack and several colleagues used a questionnaire to

obtain physicians’ responses to difficult ethical problems that potentially could

be resolved by use of deception. In one scenario, a physician recommends an

annual screening mammography for a fifty-two-year-old woman who protests

that her insurance company will not cover the test. The insurance company will

48

cover the costs if the physician states (deceptively in this scenario) that the

reason is “rule out cancer” rather than “screening mammography.” The

insurance company understands “rule out cancer” to apply only if there is a

breast mass or other objective clinical evidence of the possibility of cancer,

neither of which is present in this case. Almost 70% of the physicians

responding to this survey indicated that they would state that they were seeking

to “rule out cancer,” and 85% of this group (85% of the 70%) insisted that their

act would not involve “deception.”35

These physicians’ decisions are rudimentary attempts to specify the rule

that “Doctors should put their patients’ interests first.” Some doctors seem to

think that it is properly specified as follows: “Doctors should put their patients’

interests first by withholding information from or misleading someone who has

no right to that information, including an insurance company that, through

unjust policies of coverage, forfeits its right to accurate information.” In

addition, most physicians in the study apparently did not operate with the

definition of “deception” favored by the researchers, which is “to deceive is to

make another believe what is not true, to mislead.” Some physicians apparently

believed that “deception” occurs when one person unjustifiably misleads

another, and that it was justifiable to mislead the insurance company in these

49

circumstances. It appears that these physicians would not agree on how to

specify rules against deception or rules assigning priority to patients’ interests.

All moral rules are, in principle, subject to specification. All will need

additional content, because, as Richardson puts it, “the complexity of the moral

phenomena always outruns our ability to capture them in general norms.”36

Many already specified rules will need further specification to handle new

circumstances of conflict. These conclusions are connected to our earlier

discussion of particular moralities. Different persons and groups will offer

conflicting specifications, potentially creating multiple particular moralities. In

any problematic case, competing specifications are likely to be offered by

reasonable and fair-minded parties, all of whom are committed to the common

morality.

To say that a problem or conflict is resolved or dissolved by specification

is to say that norms have been made sufficiently determinate in content that,

when cases fall under them, we know what must be done. Obviously some

proposed specifications will fail to provide the most adequate or justified

resolution. When competing specifications emerge, the proposed specifications

should be based on deliberative processes of reasoning. Specification as a

method can be connected to a model of justification that will support some

50

specifications and not others, as we argue in Chapter 10 (pp. •••–•••).

Some specified norms are virtually absolute and need no further

specification, though they are rare. Examples include prohibitions of cruelty

that involve unnecessary infliction of pain and suffering.37 “Do not rape” is a

comparable example. More interesting are norms that are intentionally

formulated with the goal of including all legitimate exceptions. An example is,

“Always obtain oral or written informed consent for medical interventions with

competent patients, except in emergencies, in forensic examinations, in low-risk

situations, or when patients have waived their right to adequate information.”

This norm needs further interpretation, including an analysis of what constitutes

an informed consent, an emergency, a waiver, a forensic examination, and a

low risk. This rule would be absolute if all legitimate exceptions had been

successfully incorporated into its formulation, but such rules are rare. In light of

the range of possibilities for contingent conflicts among rules, even the firmest

and most detailed rules are likely to encounter exceptive cases.

<2>Weighing and Balancing</2>

Principles, rules, obligations, and rights often must be balanced in

circumstances of contingent conflict. Does balancing differ from specification,

51

or are they identical?

<3>The process of weighing and balancing.</3> Balancing occurs in

the process of reasoning about which moral norms should prevail when two or

more of them come into conflict. Balancing is concerned with the relative

weights and strengths of different moral norms, whereas specification is

concerned primarily with their range and scope, i.e., their reach when narrowing

the scope of pre-existing general norms (while adding content). Balancing

consists of deliberation and judgment about these weights and strengths. It is

well suited for reaching judgments in particular cases, whereas specification is

especially useful for developing more specific policies from already accepted

general norms.

The metaphor of larger and smaller weights moving a scale up and down

has often been invoked to depict the balancing process, but this metaphor can

obscure what happens in balancing. Justified acts of balancing are supported by

good reasons. They need not rest merely on intuition or feeling, although

intuitive balancing is one form of balancing. Suppose a physician encounters an

emergency case that would require her to extend an already long day, making

her unable to keep a promise to take her son to the local library. She engages in

52

a process of deliberation that leads her to consider how urgently her son needs

to get to the library, whether they could go to the library later, whether another

physician could handle the emergency case, and the like. If she determines to

stay deep into the night with the patient, she has judged this obligation to be

overriding because she has found a good and sufficient reason for her action.

The reason might be that a life hangs in the balance and she alone may have the

knowledge to deal adequately with the circumstances. Canceling her evening

with her son, distressing as it will be, could be justified by the significance of

her reasons for doing what she does.

One way of approaching balancing merges it with specification. In our

example, the physician’s reasons can be generalized to similar cases: “If a

patient’s life hangs in the balance and the attending physician alone has the

knowledge to deal adequately with the full array of the circumstances, then the

physician’s conflicting domestic obligations must yield.” Even if we do not

always state the way we balance considerations in the form of a specification,

might not all deliberative judgments be made to conform to this model? If so,

then deliberative balancing would be nothing but deliberative specification.

The goal of merging specification and balancing is appealing, but it is not

well-suited to handle all situations in which balancing occurs. Specification

53

requires that a moral agent extend norms by both narrowing their scope and

generalizing to relevantly similar circumstances. Accordingly, “respect the

autonomy of competent patients when they become incompetent by following

their advance directives” is a rule suited for all incompetent patients with

advance directives. However, the responses of caring moral agents, such as

physicians and nurses, are often highly specific to the needs of this patient or

this family in this particular circumstance. Numerous considerations must be

weighed and balanced, and any generalizations that could be formed might not

hold even in remarkably similar cases.

Generalizations conceived as policies might even be dangerous. For

example, cases in which risk of harm and burden are involved for a patient are

often circumstances unlikely to be decided by expressing, by a rule, how much

risk is allowable or how heavy the burden can be to secure a certain stated

benefit. After levels of risk and burden are determined, these considerations

must be balanced with the likelihood of the success of a procedure, the

uncertainties involved, whether an adequately informed consent can be

obtained, whether the family has a role to play, and the like. In this way,

balancing allows for a due consideration of all the factors bearing on a complex

particular circumstance, including all relevant moral norms.

54

Consider the following discussion with a young woman who has just

been told that she is HIV-infected, as recorded by physician Timothy Quill and

nurse Penelope Townsend:38

<DIA>PATIENT: Please don’t tell me that. Oh my God. Oh my

children. Oh Lord have mercy. Oh God, why did He do this to me? . . .

DR. QUILL: First thing we have to do is learn as much as we

can about it, because right now you are okay.

PATIENT: I don’t even have a future. Everything I know is that

you gonna die anytime. What is there to do? What if I’m a walking

time bomb? People will be scared to even touch me or say anything to

me.

DR. QUILL: No, that’s not so.

PATIENT: Yes they will, ’cause I feel that way . . .

DR. QUILL: There is a future for you . . .

PATIENT: Okay, alright. I’m so scared. I don’t want to die. I

don’t want to die, Dr. Quill, not yet. I know I got to die, but I don’t

want to die.

DR. QUILL: We’ve got to think about a couple of

things.</DIA>

55

Quill and Townsend work to calm down and reassure this patient, while

engaging sympathetically with her feelings and conveying the presence of

knowledgeable medical authorities. Their emotional investment in the patient’s

feelings is joined with a detached evaluation of the patient. Too much

compassion and emotional investment may doom the task at hand; too much

detachment will be cold and may destroy the patient’s trust and hope. A balance

in the sense of a right mixture between engagement and detachment must be

found.

Quill and Townsend could try to specify norms of respect and

beneficence to indicate how caring physicians and nurses should respond to

patients who are desperately upset. However, specification will ring hollow and

will not be sufficiently nuanced to provide practical guidance for this patient

and certainly not for all desperately upset patients. Each encounter calls for a

response inadequately captured by general principles and rules and their

specifications. Behavior that is a caring response for one desperate patient may

intrude on privacy or irritate another desperate patient. A physician may, for

example, find it appropriate to touch or caress a patient, while appreciating that

such behavior would be entirely inappropriate for another patient in a similar

circumstance.

56

How physicians and nurses balance different moral considerations often

involves sympathetic insight, humane responsiveness, and the practical wisdom

of discerning a particular patient’s circumstance and needs.39 Balancing is often

a more complex set of activities than those involved in a straightforward case of

balancing two conflicting principles or rules. Considerations of trust,

compassion, objective assessment, caring responsiveness, reassurance, and the

like may all be involved in the process of balancing.

In many clinical contexts it may be hopelessly complicated and

unproductive to engage in specification. For example, in cases of balancing

harms of treatment against the benefits of treatment for incompetent patients,

the cases are often so exceptional that it is perilous to generalize a conclusion

that would reach out to other cases. These problems are sometimes further

complicated by disagreements among family members about what constitutes a

benefit, poor decisions and indecision by a marginally competent patient,

limitations of time and resources, and the like.40

We do not suggest that balancing is inescapably intuitive and

unreflective. Instead, we propose a model of moral judgment that focuses on

how balancing and judgment occur through practical astuteness, discriminating

intelligence, and sympathetic responsiveness that are not reducible to the

57

specification of norms. The capacity to balance many moral considerations is

connected to what we discuss in Chapter 2 as capacities of moral character.

Capacities in the form of virtues of compassion, attentiveness, discernment,

caring, and kindness are integral to the way wise moral agents balance diverse,

sometimes competing, moral considerations.

Practicability supplies another reason why the model of specification

needs supplementation by the model of balancing. Progressive specification

covering all areas of the moral life would eventually mushroom into a body of

norms so bulky that the normative system would become unwieldy. A scheme

of comprehensive specification would constitute a package of potentially

hundreds, thousands, or millions of rules, each suited to a narrow range of

conduct. In the model of specification, every type of action in a circumstance of

the contingent conflict of norms would be covered by a rule, but the

formulation of rules for every circumstance of contingent conflict would be a

body of rules too cumbersome to be helpful.

<3>Conditions that constrain balancing.</3>To allay concerns that the

model of balancing is too intuitive or too open-ended and lacks a commitment

to firm principles and rigorous reasoning, we propose six conditions that should

58

help reduce intuition, partiality, and arbitrariness. These conditions must be met

to justify infringing one prima facie norm in order to adhere to another.

<NL>1. Good reasons are offered to act on the overriding norm

rather than the infringed norm.

2. The moral objective justifying the infringement has a realistic

prospect of achievement.

3. No morally preferable alternative actions are available.41

4. The lowest level of infringement, commensurate with

achieving the primary goal of the action, has been selected.

5. All negative effects of the infringement have been minimized.

6. All affected parties have been treated impartially.</NL>

Although some of these conditions are obvious and noncontroversial,

some are often overlooked in moral deliberation and would lead to different

conclusions were they observed. For example, some decisions to use futile life-

extending technologies over the objections of patients or their surrogates violate

condition 2 by endorsing actions in which no realistic prospect exists of

achieving the goals of a proposed intervention. Typically, these decisions are

made when health professionals regard the intervention as legally required, but

in some cases the standard invoked is merely traditional or deeply entrenched.

59

Condition 3 is more commonly violated. Actions are regularly performed

in some settings without serious consideration of alternative actions that might

be performed. As a result, agents fail to identify a morally preferable

alternative. For example, in animal care and use committees a common conflict

involves the obligation to approve a good scientific protocol and the obligation

to protect animals against unnecessary suffering. A protocol may be approved if

it proposes a standard form of anesthesia. However, standard forms of

anesthesia are not always the best way to protect the animal, and further inquiry

is needed to determine the best anesthetic for the particular interventions

proposed. In our schema of conditions, it is unjustifiable to approve the protocol

or to conduct the experiment without this additional inquiry, which affects

conditions 4 and 5 as well as 3.

Finally, consider this example: The principle of respect for autonomy and

the principle of beneficence (which requires acts intended to prevent harm to

others) sometimes come into contingent conflict when addressing situations that

arise in governmental and professional responses to serious infectious-disease

outbreaks, such as Severe Acquired Respiratory Syndrome (SARS). Persons

exposed to SARS may put other persons at risk. The government, under its

public health responsibilities, and various health professionals have an

60

obligation based on beneficence and justice to protect unexposed persons

whenever possible. However, respect for autonomy often sets a prima facie

barrier to infringements of liberty and privacy even in the context of public

health concerns. To justify overriding respect for autonomy, one must show that

mandatory quarantine of exposed individuals is necessary to prevent harm to

others and has a reasonable prospect of preventing such harm. If it meets these

conditions, mandatory quarantine still must pass the least-infringement test

(condition 4), and public health officials should seek to minimize the negative

effects of the quarantine, including the loss of income and the inability to care

for dependent family members (condition 5). Finally, impartial application of

the quarantine rules is essential for both fairness and public trust (condition 6).42

In our judgment, these six constraining conditions are morally

demanding, at least in some circumstances. When conjoined with requirements

of coherence presented in Chapter 10 (pp. •••–•••), these conditions provide

protections against purely intuitive, subjective, or biased balancing judgments.

We could introduce further criteria or safeguards, such as “rights override

nonrights” and “liberty principles override nonliberty principles,” but these

provisions are certain to fail in circumstances in which rights claims and liberty

interests are relatively minor.

61

<2>Moral Diversity and Moral Disagreement</2>

Sometimes conscientious and reasonable moral agents understandably disagree

over moral priorities in circumstances of a contingent conflict of norms.

Morally conscientious persons may disagree, for example, about whether

disclosure of a life-threatening condition to a fragile patient is appropriate,

whether religious values about brain death have a place in secular biomedical

ethics, whether teenagers should be permitted to refuse life-sustaining

treatments, and other issues. Disagreement does not indicate moral ignorance or

moral defect. We simply lack a single, entirely reliable way to resolve many

disagreements, despite methods of specifying and balancing.

Moral disagreement can emerge because of (1) factual disagreements

(e.g., about the level of suffering that an intervention will cause), (2)

disagreements resulting from insufficient information or evidence, (3)

disagreements about which norms are applicable or relevant in the

circumstances, (4) disagreements about the relative weights or rankings of the

relevant norms, (5) disagreements about appropriate forms of specification or

balancing, (6) the presence of a genuine moral dilemma, (7) scope and moral

status disagreements about who should be protected by a moral norm (e.g.,

62

whether embryos, fetuses, and sentient animals are protected; see Chapter 3),

and (8) conceptual disagreements about a crucial moral concept such as whether

removal of nutrition and hydration from a dying patient at a family’s request

constitutes killing.

Different parties may emphasize different principles or assign different

weights to principles even when they agree on which principles and concepts

are relevant. Disagreement may persist among morally committed persons who

appropriately appreciate the basic demands that morality makes on them. If

evidence is incomplete and different items of evidence are available to different

parties, one individual or group may be justified in reaching a conclusion that

another individual or group is justified in rejecting. Even if both parties have

some incorrect beliefs, each party may have good reasons for holding those

beliefs. We cannot hold persons to a higher practical standard than to make

judgments conscientiously in light of the available norms and evidence.

When moral disagreements arise, a moral agent can—and usually

should—defend his or her decision without disparaging or reproaching others

who reach different decisions. Recognition of legitimate diversity—by contrast

to moral violations that warrant criticism—is vital in the evaluation of the

actions of others. One person’s conscientious assessment of his or her

63

obligations may differ from another’s when they confront the same moral

problem, and both evaluations may be appropriately grounded in the common

morality. Similarly, what one institution or government determines it should do

may differ from what another institution or government determines it should do.

In such cases we can assess one position as morally preferable to another only if

we can show that the position rests on a more coherent set of specifications and

interpretations of the common morality.43

<1>CONCLUSION</1>

In this chapter we have presented what is sometimes called the four-principles

approach to biomedical ethics, now commonly called principlism.44 The four

clusters of principles in our moral framework descend from the common

morality, but when specifying and balancing these principles in later chapters

we will also call on historical experience in formulating professional

obligations and virtues in health care, public health, biomedical research, and

health policy. Although various assumptions in traditional medical ethics,

current medical and research codes, and other parts of contemporary bioethics

need further reform, we are deeply indebted to their insights and commitments.

Our goal in later chapters is to develop, specify, and balance the normative

64

content of the four clusters of principles, and we will often seek to render our

views consistent with professional traditions, practices, and codes.

Principlism is not merely a list of four abstract principles. It is a theory

about how these principles are linked to and guide practice. In the nine chapters

hereafter we will show how principles and other moral norms are connected to

an array of understandings, practices, and transactions in healthcare settings,

research institutions, and public health policies.

<N-1>Notes</N-1>

<N>1 See Albert Jonsen, The Birth of Bioethics (New York: Oxford University Press, 1998), pp. 3ff; Jonsen, A Short History of Medical Ethics (New York: Oxford University Press, 2000); John-Stewart Gordon, “Bioethics,” in the Internet Encyclopedia of Philosophy, especially section 2, available at https://www.iep.utm.edu/bioethics/ (accessed March 23, 2018); and Edmund D. Pellegrino and David C. Thomasma, The Virtues in Medical Practice (New York: Oxford University Press, 1993), pp. 184–89.

2 A comprehensive treatment of this history that ranges worldwide is Robert B.

Baker and Laurence McCullough, eds. The Cambridge World History of Medical Ethics (Cambridge and New York: Cambridge University Press, 2009).

3 The language of “applied ethics” can be misleading insofar as it suggests one-

way traffic from ethical theory and principles and rules to particular judgments about cases. In fact, particular case judgments interact dialectically with and may lead to modifications of theories, principles, and rules. See our discussion in Chapter 10, pp. , pp. •••–•••.

4 These distinctions should be used with caution. Metaethics frequently takes a

turn toward the normative, and normative ethics often relies on metaethics. Just as no sharp distinction should be drawn between practical ethics and general normative ethics, no bright line should be drawn to distinguish normative ethics and metaethics.

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5 Although there is only one universal common morality, there is more than one theory of the common morality. For a diverse group of theories, see Alan Donagan, The Theory of Morality (Chicago: University of Chicago Press, 1977); Bernard Gert, Common Morality: Deciding What to Do (New York: Oxford University Press, 2007); Bernard Gert, Charles M. Culver, and K. Danner Clouser, Bioethics: A Return to Fundamentals, 2nd ed. (New York: Oxford University Press, 2006); W. D. Ross, The Foundations of Ethics (Oxford: Oxford University Press, 1939); and the special issue of the Kennedy Institute of Ethics Journal 13 (2003), especially the introductory article by Robert Veatch, pp. 189–92.

For challenges to these theories and their place in bioethics, see John D. Arras, “The Hedgehog and the Borg: Common Morality in Bioethics,” Theoretical Medicine and Bioethics 30 (2009): 11-30; Arras, “A Common Morality for Hedgehogs: Bernard Gert’s Method,” in Arras, Methods in Bioethics: The Way We Reason Now, ed. James F. Childress and Matthew Adams (New York: Oxford University Press, 2017), pp. 27-44; B. Bautz, “What is the Common Morality, Really?” Kennedy Institute of Ethics Journal 26 (2016): 29- 45; Carson Strong, “Is There No Common Morality?” Medical Humanities Review 11 (1997): 39-45; and Andrew Alexandra and Seumas Miller, “Ethical Theory, ‘Common Morality,’ and Professional Obligations,” Theoretical Medicine and Bioethics 30 (2009): 69- 80.

6 See Martha Nussbaum’s thesis that, in Aristotle’s philosophy, certain “non-relative virtues” are objective and universal. “Non-Relative Virtues: An Aristotelian Approach,” in Ethical Theory, Character, and Virtue, ed. Peter French et al. (Notre Dame, IN: University of Notre Dame Press, 1988), pp. 32–53, especially pp. 33–4, 46–50. In another classic work in philosophical ethics, David Hume presents a theory of the virtues as objective and universal, though his theory is somewhat different from Aristotle’s. See Hume’s An Enquiry concerning the Principles of Morals, ed. Tom L. Beauchamp, in the series “Oxford Philosophical Texts Editions” (Oxford: Oxford University Press, 1998).

7 For a broad and engaging account of common morality, see Rebecca Kukla, “Living

with Pirates: Common Morality and Embodied Practice,” Cambridge Quarterly of Healthcare Ethics 23 (2014): 75-85. See also Bernard Gert’s insistence on the role of the whole moral system (not merely rules of obligation) and the perils of neglecting it, an often overlooked point with which we agree. See Gert’s Morality: Its Nature and Justification (New York: Oxford University Press, 2005), pp. 3, 159–61, 246–47; and see also his “The Definition of Morality,” in The Stanford Encyclopedia of Philosophy; revision of Feb. 8, 2016, available at https://plato.stanford.edu/entries/morality-definition/ (accessed February 9, 2018).

8 This mistaken interpretation of our theory is found in Leigh Turner, “Zones of Consensus and Zones of Conflict: Questioning the ‘Common Morality’ Presumption in Bioethics,” Kennedy Institute of Ethics Journal 13 (2003): 193–218; and Turner, “An Anthropological Exploration of Contemporary Bioethics: The Varieties of Common Sense,” Journal of Medical Ethics 24 (1998): 127–33.

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9 See David DeGrazia, “Common Morality, Coherence, and the Principles of Biomedical Ethics,” Kennedy Institute of Ethics Journal 13 (2003): 219–30; Turner, “Zones of Consensus and Zones of Conflict”; Donald C. Ainslee, “Bioethics and the Problem of Pluralism,” Social Philosophy and Policy 19 (2002): 1–28; Oliver Rauprich, “Common Morality: Comment on Beauchamp and Childress,” Theoretical Medicine and Bioethics 29 (2008): 43–71; and Letícia Erig Osório de Azambuja and Volnei Garrafa, “The Common Morality Theory in the Work of Beauchamp and Childress,” Revista Bioética 23 (2015), available at http://www.scielo.br/scielo.php?pid=S1983- 80422015000300634&script=sci_arttext&tlng=en (accessed March 22, 2018). For a related, but distinguishable, criticism, see Anna E. Westra, Dick L. Willems, and Bert J. Smit, “Communicating with Muslim Parents: ‘The Four Principles’ are not as Culturally Neutral as Suggested,” European Journal of Pediatrics 168 (2009): 1383-1387; this article is published together with a beautifully correct interpretation of our position by Voo Teck Chuan, “Editorial Comment: The Four Principles and Cultural Specification,” European Journal of Pediatrics 168 (2009): 1389.

10 Kukla reaches this conclusion in “Living with Pirates.” See, in response, Tom

L. Beauchamp, “On Common Morality as Embodied Practice: A Reply To Kukla,” Cambridge Quarterly of Healthcare Ethics 23 (2014): 86-93; Carson Strong, “Kukla’s Argument against Common Morality as a Set of Precepts: On Stranger Tides,” Cambridge Quarterly of Healthcare Ethics 23 (2014): 93–99; and Kukla, “Response to Strong and Beauchamp–at World’s End,” Cambridge Quarterly of Healthcare Ethics 23 (2014): 99-102.

11 See Richard B. Brandt, “Morality and Its Critics,” in his Morality, Utilitarianism,

and Rights (Cambridge: Cambridge University Press, 1992), chap. 5; and Gregory Mellema, “Moral Ideals and Virtue Ethics,” The Journal of Ethics 14 (2010): 173-180. See also our discussion of moral ideals and supererogation in Chapter 2, pp. •••–•••.

12 Talcott Parsons, Essays in Sociological Theory, rev. ed. (Glencoe, IL: Free Press,

1954), p. 372. See further Jan Nolin, In Search of a New Theory of Professions (Borås, Sweden: University of Borås, 2008).

13 See the excellent introduction to this subject in Edmund D. Pellegrino, “Codes,

Virtues, and Professionalism,” in Methods of Bioethics, ed. Daniel Sulmasy and Jeremy Sugarman, 2nd ed. (Washington, DC: Georgetown University Press, 2010), pp. 91-108. For an overview of codes of medical ethics, see Robert Baker, “Medical Codes and Oaths,” Bioethics [Formerly Encyclopedia of Bioethics], 4th edition, ed. Bruce Jennings (Farmington Hills, MI: Gale, Cengage Learning, Macmillan Reference USA, 2014), Vol. 4, pp. 1935-1946. For a history and assessment of the Code of Ethics for Nurses of the American Nurses Association, see Beth Epstein and Martha Turner, “The Nursing Code of Ethics: Its Value, Its History,” The Online Journal of Issues in Nursing 20, No. 2 (May

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2015), available at http://ojin.nursingworld.org/MainMenuCategories/ANAMarketplace/ANAPeriodicals/OJ IN/TableofContents/Vol-20-2015/No2-May-2015/The-Nursing-Code-of-Ethics-Its- Value-Its-History.html (accessed June 3, 2018).

14 The American Medical Association Code of Ethics of 1847 was largely adapted from Thomas Percival’s Medical Ethics; or a Code of Institutes and Precepts, Adapted to the Professional Conduct of Physicians and Surgeons (Manchester, England: S. Russell, 1803). See Donald E. Konold, A History of American Medical Ethics 1847–1912 (Madison, WI: State Historical Society of Wisconsin, 1962), chaps. 1–3; Chester Burns, “Reciprocity in the Development of Anglo-American Medical Ethics,” in Legacies in Medical Ethics, ed. Burns (New York: Science History Publications, 1977); and American Medical Association, “History of the Code,” available at https://www.ama-assn.org/sites/default/files/media- browser/public/ethics/ama-code-ethics-history.pdf (accessed March 23, 2018).

15 For a related and rigorous critical analysis of Hippocratic and other medical

codes, see Robert M. Veatch’s influential views in his Hippocratic, Religious, and Secular Medical Ethics: The Points of Conflict (Washington, DC: Georgetown University Press, 2012).

16 Cf. the conclusions reached about medicine in N. D. Berkman, M. K. Wynia, and L. R. Churchill, “Gaps, Conflicts, and Consensus in the Ethics Statements of Professional Associations, Medical Groups, and Health Plans,” Journal of Medical Ethics 30 (2004): 395– 401; Ryan M. Antiel, Farr A. Curlin, C. Christopher Hook, and Jon C. Tilburt, “The Impact of Medical School Oaths and other Professional Codes of Ethics: Results of a National Physician Survey,” Archives of Internal Medicine 171 (2011): 469-71; Robert D. Orr, Norman Pang, Edmund D. Pellegrino, and Mark Siegler, “Use of the Hippocratic Oath: A Review of Twentieth Century Practice and a Content Analysis of Oaths Administered in Medical Schools in the U.S. and Canada in 1993,” Journal of Clinical Ethics 8 (1997): 377– 88; and A. C. Kao and K. P. Parsi, “Content Analyses of Oaths Administered at U.S. Medical Schools in 2000,” Academic Medicine 79 (2004): 882–87.

17 Jay Katz, ed., Experimentation with Human Beings (New York: Russell Sage

Foundation, 1972), pp. ix–x.

18 For an examination of different models of public bioethics, see James F. Childress, “Reflections on the National Bioethics Advisory Commission and Models of Public Bioethics,” Goals and Practice of Public Bioethics: Reflections on National Bioethics Commissions, special report, Hastings Center Report 47, no. 3 (2017): S20- S23, and several other essays in this special report. See also Society’s Choices: Social and Ethical Decision Making in Biomedicine, ed. Ruth Ellen Bulger, Elizabeth Meyer Bobby, and Harvey V. Fineberg, for the Committee on the Social and Ethical Impacts of Developments in Biomedicine, Division of Health Sciences Policy, Institute of Medicine

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(Washington, DC: National Academies Press, 1995).

19 See Allen Buchanan, “Philosophy and Public Policy: A Role for Social Moral Epistemology,” Journal of Applied Philosophy 26 (2009): 276-90; Will Kymlicka, “Moral Philosophy and Public Policy: The Case of New Reproductive Technologies,” in Philosophical Perspectives on Bioethics, ed. L. W. Sumner and Joseph Boyle (Toronto: University of Toronto Press, 1996); Dennis Thompson, “Philosophy and Policy,” Philosophy & Public Affairs 14 (Spring 1985): 205–18; Andrew I. Cohen, Philosophy, Ethics, and Public Policy (London and New York: Routledge, 2015); and a symposium on “The Role of Philosophers in the Public Policy Process: A View from the President’s Commission,” with essays by Alan Weisbard and Dan Brock, in Ethics 97 (July 1987): 775–95.

20 Tarasoff v. Regents of the University of California, 17 Cal. 3d 425, 551 P.2d 334,

131 Cal. Rptr. 14 (Cal. 1976).

21 On the interactions of ethical and legal judgments (and the reasons for their interactions) on bioethical issues, see Stephen W. Smith, John Coggan, Clark Hobson, et al., eds., Ethical Judgments: Re-Writing Medical Law (Oxford U.K. and Portland, OR: Hart Publishing, 2016).

22 See John Lemmon, “Moral Dilemmas,” Philosophical Review 71 (1962): 139–58; Daniel Statman, “Hard Cases and Moral Dilemmas,” Law and Philosophy 15 (1996): 117– 48; Terrance McConnell, “Moral Dilemmas," Stanford Encyclopedia of Philosophy (Fall 2014 Edition), ed. Edward N. Zalta, available at https://plato.stanford.edu/archives/fall2014/entries/moral-dilemmas/ (accessed March 23, 2018); H. E. Mason, “Responsibilities and Principles: Reflections on the Sources of Moral Dilemmas,” in Moral Dilemmas and Moral Theory, ed. H. E. Mason (New York: Oxford University Press, 1996).

23 Christopher W. Gowans, ed., Moral Dilemmas (New York: Oxford University

Press, 1987); Walter Sinnott-Armstrong, Moral Dilemmas (Oxford: Basil Blackwell, 1988); Edmund N. Santurri, Perplexity in the Moral Life: Philosophical and Theological Considerations (Charlottesville, VA: University Press of Virginia, 1987). For an approach to dilemmas offered as an addition to our account in this chapter, see Joseph P. DeMarco, “Principlism and Moral Dilemmas: A New Principle,” Journal of Medical Ethics 31 (2005): 101–5.

24 Some writers in biomedical ethics express reservations about the place of the particular principles we propose in this book. See Pierre Mallia, The Nature of the Doctor– Patient Relationship: Health Care Principles Through the Phenomenology of Relationships with Patients (Springer Netherlands, Springer Briefs in Ethics, 2013), esp. Chapter 2, “Critical Overview of Principlist Theories”; K. Danner Clouser and Bernard Gert, “A Critique of Principlism,” Journal of Medicine and Philosophy 15 (April 1990): 219–36;

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Søren Holm, “Not Just Autonomy—The Principles of American Biomedical Ethics,” Journal of Medical Ethics 21 (1994): 332-38; Peter Herissone-Kelly, “The Principlist Approach to Bioethics, and Its Stormy Journey Overseas,” in Scratching the Surface of Bioethics, ed. Matti Häyry and Tuija Takala (Amsterdam: Rodopi, 2003), pp. 65–77; and numerous essays in Principles of Health Care Ethics, ed. Raanan Gillon and Ann Lloyd (London: Wiley, 1994); and Principles of Health Care Ethics, 2nd ed., ed. Richard E. Ashcroft, et al. (Chichester, England: Wiley, 2007) .

25 Thomas Percival, Medical Ethics; or a Code of Institutes and Precepts, Adapted to

the Professional Interests of Physicians and Surgeons (Manchester: S. Russell, 1803 (and numerous later editions). For commentary on this classic work and its influence, see Edmund D. Pellegrino, “Percival's Medical Ethics: The Moral Philosophy of an 18th-Century English Gentleman,” Archives of Internal Medicine 146 (1986): 2265-2269; Pellegrino, “Thomas Percival's Ethics: The Ethics Beneath The Etiquette” (Washington DC: Georgetown University, Kennedy Institute of Ethics, 1984), available at https://repository.library.georgetown.edu/bitstream/handle/10822/712018/Pellegrino_M269.p df?sequence=1&isAllowed=n (accessed March 24, 2018); Robert B. Baker, Arthur L. Caplan, Linda L. Emanuel, and Stephen R. Latham (eds.), The American Medical Ethics Revolution: How the AMA's Code of Ethics Has Transformed Physicians' Relationships to Patients, Professionals, and Society (Baltimore: Johns Hopkins University Press, 1999).

26 Procedural rules might also be interpreted as grounded in substantive rules of

equality. If so interpreted, the procedural rules could be said to have a justification in substantive rules.

27 For a discussion of the distinction between pro tanto and prima facie, see Shelly

Kagan, The Limits of Morality (Oxford: Clarendon Press, 1989), p. 17. Kagan prefers pro tanto, rather than prima facie, and notes that Ross used prima facie with effectively the same meaning, which some writers classify as a mistake on Ross’s part. See further Andrew E. Reisner, “Prima Facie and Pro Tanto Oughts,” International Encyclopedia of Ethics [online], first published: 1 February 2013, available at https://onlinelibrary.wiley.com/doi/full/10.1002/9781444367072.wbiee406 (accessed March 24, 2018)

28 W. D. Ross, The Right and the Good (Oxford: Clarendon Press, 1930), esp. pp. 19–

36, 88. On important cautions about both the meaning and use of the related notion of “prima facie rights,” see Joel Feinberg, Rights, Justice, and the Bounds of Liberty (Princeton, NJ: Princeton University Press, 1980), pp. 226–29, 232; and Judith Jarvis Thomson, The Realm of Rights (Cambridge, MA: Harvard University Press, 1990), pp. 118–29.

29 Robert Nozick, “Moral Complications and Moral Structures,” Natural Law Forum

13 (1968): 1–50, available at https://scholarship.law.nd.edu/cgi/viewcontent.cgi?article=1136...naturallaw_forum

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(accessed March 26, 2018); James J. Brummer, “Ross and the Ambiguity of Prima Facie Duty,” History of Philosophy Quarterly 19 (2002): 401–22. See also Thomas E. Hill, Jr., “Moral Dilemmas, Gaps, and Residues: A Kantian Perspective”; Walter Sinnott-Armstrong, “Moral Dilemmas and Rights”; and Terrance C. McConnell, “Moral Residue and Dilemmas”—all in Moral Dilemmas and Moral Theory, ed. Mason.

30 For a similar view, see Ross, The Right and the Good, p. 28.

31 Henry S. Richardson, “Specifying Norms as a Way to Resolve Concrete Ethical

Problems,” Philosophy & Public Affairs 19 (Fall 1990): 279–310; and Richardson, “Specifying, Balancing, and Interpreting Bioethical Principles,” Journal of Medicine and Philosophy 25 (2000): 285–307, also in Belmont Revisited: Ethical Principles for Research with Human Subjects, ed. James F. Childress, Eric M. Meslin, and Harold T. Shapiro (Washington, DC: Georgetown University Press, 2005), pp. 205–27. See also David DeGrazia, “Moving Forward in Bioethical Theory: Theories, Cases, and Specified Principlism,” Journal of Medicine and Philosophy 17 (1992): 511–39.

32 Richardson, “Specifying, Balancing, and Interpreting Bioethical Principles,” p.

289.

33 For an excellent critical examination and case study of how the four-principles approach can and should be used as a practical instrument, see John-Stewart Gordon, Oliver Rauprich, and Jochen Vollman, “Applying the Four-Principle Approach,” Bioethics 25 (2011): 293–300, with a reply by Tom Beauchamp, “Making Principlism Practical: A Commentary on Gordon, Rauprich, and Vollmann,” Bioethics 25 (2011): 301–03.

34 American Academy of Psychiatry and the Law, “Ethical Guidelines for the Practice

of Forensic Psychiatry,” as revised and adopted May 2005, section III: “The informed consent of the person undergoing the forensic evaluation should be obtained when necessary and feasible. If the evaluee is not competent to give consent, the evaluator should follow the appropriate laws of the jurisdiction. . . . [P]sychiatrists should inform the evaluee that if the evaluee refuses to participate in the evaluation, this fact may be included in any report or testimony. If the evaluee does not appear capable of understanding the information provided regarding the evaluation, this impression should also be included in any report and, when feasible, in testimony.” Available at http://www.aapl.org/ethics.htm (accessed February 19, 2018).

35 Dennis H. Novack et al., “Physicians’ Attitudes Toward Using Deception to Resolve Difficult Ethical Problems,” Journal of the American Medical Association 261 (May 26, 1989): 2980–85. We return to these problems in Chapter 8 (pp. •••–•••).

36 Richardson, “Specifying Norms,” p. 294. The word “always” in this formulation

should be understood to mean “in principle always.” Specification may, in some cases, reach

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a final form.

37 Other prohibitions, such as rules against murder and rape, may be absolute only because of the meaning of their terms. For example, to say “murder is categorically wrong” may be only to say “unjustified killing is unjustified.”

38 Timothy Quill and Penelope Townsend, “Bad News: Delivery, Dialogue, and

Dilemmas,” Archives of Internal Medicine 151 (March 1991): 463–64.

39 See Alisa Carse, “Impartial Principle and Moral Context: Securing a Place for the Particular in Ethical Theory,” Journal of Medicine and Philosophy 23 (1998): 153–69. For a defense of balancing as the best method in such situations, see Joseph P. DeMarco and Paul J. Ford, “Balancing in Ethical Deliberations: Superior to Specification and Casuistry,” Journal of Medicine and Philosophy 31 (2006): 483–97, esp. 491–93.

40 See similar reflections in Lawrence Blum, Moral Perception and Particularity

(New York: Cambridge, 1994), p. 204.

41 To the extent these six conditions incorporate moral norms, the norms are prima facie, not absolute. Condition 3 is redundant if it cannot be violated when all of the other conditions are satisfied; but it is best to be clear on this point, even if redundant.

42 See James F. Childress and Ruth Gaare Bernheim, “Public Health Ethics:

Public Justification and Public Trust,” Bundesgundheitsblat: Gusundheitsforschung, Gesundheitsschutz 51, No. 2 (February 2008): 158-63; and Ruth Gaare Bernheim, James F. Childress, Richard J. Bonnie, and Alan L. Melnick, Essentials of Public Health Ethics: Foundations, Tools, and Interventions (Boston: Jones and Bartlett, 2014), esp. chaps. 1, 2, & 8.

43 For a criticism of our conclusion in this paragraph, see Marvin J. H. Lee, “The Problem of ‘Thick in Status, Thin in Content’ in Beauchamp and Childress’ Principlism,” Journal of Medical Ethics 36 (2010): 525–28. See further Angus Dawson and E. Garrard, “In Defence of Moral Imperialism: Four Equal and Universal Prima Facie Principles,” Journal of Medical Ethics 32 (2006): 200–4; Walter Sinnott-Armstrong, Moral Dilemmas, pp. 216–27; and D. D. Raphael, Moral Philosophy (Oxford: Oxford University Press, 1981), pp. 64–65.

44 See Bernard Gert, Charles M. Culver, and K. Danner Clouser, Bioethics: A

Return to Fundamentals, 2nd ed. (New York: Oxford University Press, 2006), chap. 4; Clouser and Gert, “A Critique of Principlism,” pp. 219–36; Carson Strong, “Specified Principlism,” Journal of Medicine and Philosophy 25 (2000): 285–307; John H. Evans, “A Sociological Account of the Growth of Principlism,” Hastings Center Report 30 (September–October 2000): 31–38; Evans, Playing God: Human Genetic Engineering and the Rationalization of Public Bioethical Debate (Chicago: University of Chicago

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Press, 2002); and Evans, The History and Future of Bioethics: A Sociological View (New York: Oxford University Press, 2011). For a critical analysis of Evans’ arguments, particularly in Playing God, see James F. Childress, “Comments,” Journal of the Society of Christian Ethics 24, no. 1 (2004): 195-204.</N>